Principles, control and legitimation of power

The question we must confront now — that of how legal principles affect the use, legitimation and control of power — is one of the aspects of the more ge­neral question about the social functions of law.

The first one of these functions — or, if you prefer, the positive side of this complex function — has to do with the new reality of our modem state — the welfare state — who creates a law that is no longer restricted to the classi­cal functions of coercion and protection, but also claims to operate as a tech­nology of social engineering. This is precisely what is reflected in the rising importance given to policies in all legal orders of developed societies.

Now, together with this tendency, so to speak, to increase the power of the law in society, there is also an increasing demand that this power be re­stricted by moral criteria usually incorporated into legal orders in the form of human or basic rights. Therefore, legal principles — in this case, especially legal principles in the strict sense — are more and more explicitly formulated in the declarations of rights to be found in modem constitutions. Of course, the need to legitimize and control power is not new. But what is perhaps new is how this need is treated. As Aulis Aamio observed, "in Western legal cultures, the belief in authorities has suffered greatly over the past decades" (Aamio 1987, XV). In turn, this has led to stronger demands concerning the justifica­tion of their decisions. Today, the main prerequisite for the exercise of public powers to be considered legitimate is that they must be able to pursue — and attain — social objectives without violating the basic rights of individuals. At­tainment of this difficult balance — which has become the regulative principle of contemporary jurists — will depend to a great part on the development of an adequate theory and practice of legal principles.